Often walking along the road, you see those cute eyes, furry beautiful souls, and you just can’t help but fall in love with them.You snuggle with them , give all your hugs and kisses to them, but often forget that they also need some food along with your love.
A recent judgment by Delhi High Court has been in the news for various reasons. For starters , the judgment has come as a relief for the animal lovers, who do their bit in taking care of the street dogs. Secondly , it has reminded us of our responsibilities as a human beings.
This pandemic has been tough not only for us but also for the animals. The only difference being, they cannot voice their pain.Many people can resonate with their pain and take out time to make sure that the street dogs in their locality don’t sleep on empty stomach.
Delhi High court in its landmark judgment emphasized on RIGHT TO FOOD of the street dogs. Yes you heard right, just like human beings, animals too need food to survive. And the court through it’s judgment has made sure that the people living in the societies take up their responsibility to feed the dogs and take care of them.
After a long standing dispute between a Delhi resident ,who was also the plaintiff and the animal lovers who had been feeding the dogs in the colony near the former’s home, the court gave a judgment in favour of the dogs.Keeping in mind the concerns of the plaintiff too, the court also reiterated that proper care and caution should be taken while feeding the dogs ,as no harm or nuisance should be caused to other individuals in the locality. While ensuing one’s rights, make sure that it does not impinge upon others’ rights.
The court emphasised that ” Animals have a right under law to be treated with compassion ,respect and dignity.Their protection is moral responsibility of every citizen, government and non government organisations. The court has made the RWAs ( Registerd welfare associations ) to take up the responsibility to make sure that the street dogs in their respective territorial areas are fed and taken care of. They have to establish ” feeding areas” where the dogs need to be fed and tended and such areas should be such that are less or not frequented by people so as causing no nuisance to the people living in or near the locality.
Always keep a small pot filled with water right outside your house so that those adorable friends of yours never go thirsty.You can also chalk out a timetable with your friends, to feed the dogs turn by turn.
These dogs are on duty 24 X 7, guarding your house and the locality from suspicious strangers.In return they don’t ask for much. Keep showering them with your love and also some food everyday so that they know they are being cared for as they do for you.
The pandemic had surely made it much difficult for the dogs in the beginning to get food due to less movement of people due to the lockdown , but now with opening up of the places, don’t forget about the dogs ; they for sure have been locked out of the houses but don’t lock them out of your hearts.
Corona virus or as its scientifically referred as Covid-19 has brought the world to its knees. How it got here, who is responsible, when will the vaccine be created and many other questions regarding to it are up to debate. However, one thing that is definitely the need of the hour is to get this disease to a halt, to decrease the number of patients. What the world needs, is a game plan which can deliver successful results. We need to flatten the curve should we want to open up the country again. So far India hasn’t shown such promise, with the number of cases increasing every day, we see a sharp increase in the graph since the partial reopening. One such country that boasts xero cases is New Zealand.
New Zealand has been able to reduce its number of cases to the point where they were able to announce zero reported cases due to a number of reasons. They have a rather small population, only 5 million or so, which is much lesser than most of the worst hit nations, India included. Another major factor is the decisive and fast action that the New Zealand government took to ensure rapid containment of the disease. They also used stringent lockdown measures in order to decrease the rate of spread of infection. Their alertness and strict policies ensured that the disease slowed due to a near inexistent halt. However, they were lucky enough that their population was low, because for a country the size of India, with its population density its very difficult to pull this task off. What doesn’t help is the state and central government bickering in order to gain an upper hand and increase their public popularity. Many states aren’t yet equipped to handle the sudden increase of patients. In Delhi, patients have to wander from hospital to hospital for treatment of coronavirus. Some of those admitted to hospitals have also gone missing. In Covid-designated Lok Nayak Jai Prakash (LNJP) Hospital, the bodies could not be accounted for. Bodies of dead people are being piled up in hospitals such as state-run LNGP and centre-run Safdarjung hospital. With such ill-equipped state of various states across the country its hard not to feel disheartened and try to approach the courts. However, in many cases that too is no longer an option, as two advocates filed PILs in Delhi High court to ask for an extension of lockdown due to the increasing tread of number of cases. Both the PILs gave good points in favour of an extended lockdown in Delhi, as it would provide a much-needed breathing space to the facilities concerning the virus and also in some manner break the transmission cycle. The plea also gave forward estimates of one lakh COVID-19 cases in the national capital by end of June and the number would escalate to around 2.25 lakh by mid-July and over 5.5 lakh by July end which the Delhi government themselves admitted. Strict measures are of the utmost importance to stop the increasing graph. However, the Delhi HC declined the PILs and did not give reasons as to why they were not entertained.
It is good to learn that while unambiguously highlighting the inevitable and invaluable importance of efficient recording of witness testimonies in a criminal trial, the Delhi High Court most recently in a latest, landmark and extremely laudable judgment titled Court On Its Own Motion Vs State in Crl. Ref. 2/2019 delivered on February 28, 2020 has issued a series of directions for collecting the evidence given by victims/witnesses, who are foreign nationals, in cases of sexual assault. This was imperative also so that the matter was decided swiftly. If this was not done then the cases as usual would have continued inordinately and this would certainly hamper the speedy and swift delivery of justice!
Court-Judgment
To start with, this notable judgment authored by Justice Manmohan for himself and Justice Sangita Dhingra Sehgal first and foremost sets the ball rolling by pointing out in para 1 that, “The subject-matter of the present Criminal Reference is reproduced below:
“There is no law/guidelines by which the court can seek intervention/involvement of the MHA and/or concerned Embassy/High Commission/Consulate for making necessary arrangements for recording of testimony of the victims/witnesses who are foreign nationals in cases of sexual assault even when the victim is very much available and has offered to get her testimony recorded. There is an urgent need to redress the issue so that the case involving victims, who are foreign nationals, do not result in imminent acquittal for want of recording of testimony of the victim/witnesses and further that the case does not remain pending in the system inordinately.””
In hindsight, para 2 then puts forth that, “It was brought to our attention that on 11th February, 2009, the Ministry of Home Affairs (hereinafter referred to as ‘the MHA’) issued the ‘Comprehensive Guidelines Regarding service of summons/notices/judicial process on persons residing abroad’ (‘2009 Guidelines’) that laid down the procedure for the service of summons on witnesses residing abroad, for the purpose of recording their evidence. These guidelines of 2009 clarified that the MHA on behalf of the Central Government had entered into reciprocal arrangements with foreign governments for service of summons/warrants/judicial processes, as required under Section 105 of the Code of Criminal Procedure. The reciprocal arrangements were in the form of Mutual Legal Assistance Treaties (‘MLAT’) with other countries.”
As it turned out, para 3 then states that, “During the pendency of the present proceedings, the MHA revised and updated its 2009 Guidelines with a view to comprehensively codify guidelines covering a gamut of issues including issuance of Letters Rogatory, mutual legal assistance requests, service of summons, notices, judicial processes including request for video conferencing, protection and preservation of data and extradition requests.”
Needless to add, it is then pointed out in para 4 that, “The comprehensive and updated Guidelines on Mutual Legal Assistance in Criminal Matters (the ‘MHA Guidelines, 2019’) was approved by the Ministry of Home Affairs and have also been placed before this Court.”
To put things in perspective, it is then added in para 5 that, “Vide order dated 29th November, 2019, this Court took on record the detailed report handed over by the learned Amicus Curiae and extracted salient features of the said report. The Union of India and the Government of NCT of Delhi were directed to file a response to the report of the learned Amicus Curiae.”
As a corollary, it is then pointed out in para 6 that, “The Union of India (through the Ministry of Home Affairs) has filed its response on 17th January, 2020 endorsing the comments of the learned Amicus Curiae.”
Be it noted, it is then disclosed in para 7 that, “The Delhi Police has also filed a status report dated 11th February, 2020 through the learned Standing Counsel (Criminal). The Report submitted by the learned Amicus Curiae had recommended that the Investigating Officer should collect relevant personal information, including passport and visa details of the witness residing abroad so that the process is immediately commenced for the issuance of summons to such witness as per the MHA Guidelines, 2019 and trial is set into motion. In paragraph 4 of the status report filed by the Delhi Police, it is stated that instructions have been issued by the DCP, Legal Cell, Police Headquarters, Delhi, vide No. 762-90/Court Cell (DA-1)/PHQ dated 20th January, 2020 to all supervisory and Investigating Officers to ensure strict compliance with the suggestions of the learned Amicus Curiae, incorporated in the order of this Court dated 29th November, 2019.”
What follows next is narrated in para 8 that, “In response to the learned Amicus Curiae’s suggestion that necessary amendments be made to the Delhi Criminal Courts (Payments of Expenses to Complainant and Witnesses) Rules, 2015, to incorporate the costs and payments for transmission of summons, notices and judicial processes, payments to witnesses including expert witnesses etc., the Government of NCT of Delhi has placed on record a letter dated 23rd January, 2020 issued by the Principal Secretary (Law, Justice and LA). By way of this letter, it has been brought to this Court’s notice that since the Delhi Criminal Courts (Payments of Expenses to Complainant and Witnesses) Rules, 2015, have been notified on the basis of a set of rules forwarded by this Court vide letter 8256/Rules/DHC/2013 dated 18th March, 2013, this Court has been requested to take necessary action for amending the rules and to forward the recommendations/set of rules to the Department of Law, Justice and LA, for compliance.”
Directions to the Government of NCT of Delhi
To be sure, it is then enunciated in para 9 that, “The learned Amicus Curiae proposes that the following amendment be made to the Delhi Criminal Courts (Payment of Expenses to Complainant and Witnesses) Rules, 2015:-
“Chapter 5
Payment of expenses in cases of persons residing abroad
The expenses for service of summons, notices and judicial processes, on persons residing abroad, and for recording of statement or collecting of evidence through video-conferencing:-
The actual expenses for service of summons, notices and judicial processes, on persons residing abroad, expenses sufficient to defray the cost of travelling of the witness within the territory of the Requested Country to a point where evidence is to be recorded through video-conferencing, the cost of establishing the live video-conferencing link, the remuneration of interpreters/translators provided by the Requested Country, expenses of preparing soft copies, certified copies of the relevant evidence and documents by the Coordinator at the Requested Country to the Court, and such other ancillary expenses as may arise, shall be paid on receipt of such demand for payment from the Requested Country, as applicable under the provisions of the Mutual Legal Assistance Treaty, or any other bilateral or multilateral treaty, or any other international instrument existing between India and the Requested Country, as the case may be.””
While continuing in the same vein, it is then also added in para 10 that, “The above proposed amendment may be placed before the Rules Committee of this Court for consideration, and if approved, be forwarded to the Principal Secretary (Law, Justice & LA), Government of NCT of Delhi, for necessary compliance.”
Video-Conferencing Guidelines
To say the least, para 11 then makes it clear that, “This Court has also issued guidelines laying down the procedure to be followed for Video Conferencing titled as ‘Video Conferencing Guidelines Issued by the High Court of Delhi: Guidelines for the Conduct of Court Proceedings between Courts and Remote Sites’, which were subsequently incorporated as Annexure B to the Delhi High Court (Original Side) Rules, 2018, and are applicable to both civil and criminal cases.”
More significantly, para 12 then minces no words in saying in simple and straight language that, “Having gone through the Report of the learned Amicus Curiae, and the need to ensure that the Video-Conferencing Guidelines issued by this Court are in conformity with the MHA Guidelines, 2019, we deem it appropriate to issue the following directions:
Directions for the High Court of Delhi
Replace existing Rule 3.4(i) with the following:-
(i) Where the person to be examined is overseas, the Court may specify the coordinator out of the following:-
(a) the official of the Consulate/Embassy of India,
Notwithstanding the above, in criminal cases, the Coordinator at the remote point shall be appointed by the Competent Authority in the Requested Country in terms of paragraph 4.9 of the MHA Guidelines, 2019, and may be any of the following:
a) the Central Authority of Requested Country,
b) if the law of Requested Country permits, the official of Consulate/Embassy of India.
Incorporate the following as Rule 6.12:-
“6.12. In criminal cases, all relevant documents sought to be put to the witness by the Prosecution/Complainant and the Defence, must be scanned, identified and numbered, and translated into a language that the witness is familiar with (if required). The same should be sent to the Coordinator in the Requested Country prior to the hearing, under strict instructions of confidentiality.”
It would be instructive to note that para 13 then observes that, “The above proposed amendments may be placed before the Information Technology Committee of this Court, for consideration.”
Practice Directions for all Trial Courts
Most significantly, it is then elucidated in para 14 that, “This Court is of the view that certain practice directions may also be issued to all criminal courts in order to streamline the procedure for service of summons, notices, and judicial processes, on witnesses residing abroad, and for recording their evidence through video-conferencing.
For the purpose of service of summons/notices/judicial processes on persons residing abroad, the Trial Courts must follow the procedure as laid out in the MHA Guidelines, 2019. The designated Central Authority in India is the Ministry of Home Affairs, and not the Ministry of External Affairs or any Indian Embassy or Consulate abroad.
It is clarified, however, that the Ministry of Home Affairs does not facilitate the execution of non-bailable warrants of arrest on an individual residing abroad. Such requests are in the nature of extradition proceedings and ought to be forwarded to the Ministry of External Affairs, CPV Division, Patiala House Annexe, Tilak Marg, New Delhi – 110001. Reference may be made to Part VII of the MHA Guidelines, 2019.
For service of summons/notices/judicial processes on persons residing abroad, Trial Courts should ensure compliance of Figure 4.6 of the MHA Guidelines, 2019, under its sign and seal. Trial Courts should additionally comply with the requirements of the checklist contained in Figure 4.3.
At the time of issuance of summons on a person residing abroad, the order of the Trial Court should also indicate whether evidence is to be recorded through video-conferencing.
It must be borne in mind that the MHA requires a minimum of ten weeks for the purpose of transmission of summons/notices/judicial processes on persons residing abroad. The process of establishing video-conferencing links between the Court and the Requested Country can begin only after service is completed. Trial Courts should therefore fix date(s) for recording of evidence, at least 12-13 weeks after its order issuing summons to the said witness.
Trial Courts should separately fix an intermediate date between the date of issuance of summons and the date of recording of evidence, to seek confirmation from the prosecuting agency about the service of summons, and to additionally seek details/information regarding the technical coordinator in the Requested Country, along with the details of the technical link for conducting video conferencing on the date(s) fixed.
Based on the information received on the intermediate date, the Trial Court should direct its own Coordinator to forthwith establish contact with its counterpart in the Requested Country, conduct a mock test of the video-conferencing link prior to the date of recording of evidence, and submit a report in this regard at least three days prior to the date fixed for recording of evidence. On the receipt of the report from Court Coordinator, the documents relied upon by the prosecution and the Defence should be identified, scanned and numbered, and sent to the Coordinator in the Requested Country, under strict instructions of confidentiality. An identical set of the above documents should be made a part of the Court record.
Due to the time taken and the costs involved in summoning witnesses residing abroad and setting up video-conferencing facilities, besides the involvement of bilateral agencies in both countries, Trial Courts should ensure that the date(s) fixed for recording of evidence through video-conferencing are utilised productively. If for some reason the Presiding Judge is unable to hold Court on the date(s) fixed, s/he should ensure, as far as possible, that the evidence is recorded by the Link Judge.”
Directions to the Delhi Police
Be it noted, it is then envisaged in para 15 that, “We have also gone through the status report filed on behalf of the Delhi Police dated 11th February, 2020. In view of Paragraph 4 of the status report, no further order or directions are required to be issued to them with regard to collection of personal information of the witness residing abroad. However, the Investigating Officer of the case must ensure that information regarding service of summons and details pertaining to video-conferencing links are provided to the Trial Court after obtaining the same from the MHA.”
Directions for Training
Of course, it cannot be missed out that it is then held in para 16 that, “We are also of the view that training sessions for judicial officers, technical staff, and police officials must be conducted to familiarize them with the procedures contained in the MHA Guidelines, 2019, the Video-Conferencing Guidelines issued by the High Court of Delhi, and the Delhi Criminal Courts (Payment of Expenses to Complainant and Witnesses) Rules, 2015.”
Now coming to the concluding paras, it is held in para 17 that, “The learned Amicus Curiae has further submitted that a copy of the MHA Guidelines, 2019, must be uploaded on the websites of this Court as well as of the District Courts. We accordingly direct the same.” Para 18 then states that, “Registry is directed that a copy of this order and the earlier order dated 29th November, 2019, be circulated to the courts below.” Lastly, it is then held in para 19 that, “In view of the above, no further orders are called for in the present matter and the Registry is directed not to list the same any further.”
No doubt, it is an extremely commendable and well written judgment by a two Judge Bench of the Delhi High Court which must be implemented in totality. It will certainly go a long way in efficient recording of witnesses in a criminal trial in cases of sexual assault. There can be no denying ort disputing it!
In a balanced, brilliant and bold decision, the Delhi High Court has just recently on March 12, 2020 in a latest, landmark and extremely laudable 15-page judgment titled Sunil Kumar Mishra vs. State in Crl. Rev. P. 494/2017 which is pertaining to death caused due to rash and negligent driving has very rightly held that lifetime ban on the convict from getting a driving license is too harsh a sentence when his entire livelihood is depended upon driving. While modifying the order of sentence in a revision petition, the Single Bench of Justice Sanjeev Sachdeva of Delhi High Court has very rightly and remarkably observed that, “The punishment of cancellation of the driving license permanently and debarring him from obtaining any driving license throughout his life literally amounts to his civil death because he would not be in a position to carry out his profession for life.” Very rightly so!
driving licence
To start with, this notable oral judgment authored by Justice Sanjeev Sachdeva of Delhi High Court sets the ball rolling by first and foremost observing in para 1 that, “Petitioner impugns judgment dated 27.02.2017 whereby the appeal of the petitioner impugning order on conviction dated 28.10.2015 has been dismissed, however, the order on sentence dated 08.11.2015 has been modified.”
While elaborating on the charges against the petitioner and the punishment that he had been sentenced to undergo, it is then observed in para 2 that, “Petitioner was convicted by the Trial Court of the offences punishable under Sections 279/304-A of the Indian Penal Code (IPC for short) and sentenced to undergo rigorous imprisonment for a period of six months for the offence under Section 279 IPC and rigorous imprisonment for the period of 18 months under Section 304A IPC.”
While then elaborating on the decision taken by the Appellate Court, it is then brought out in para 3 that, “The Appellate Court, in the appeal filed by the petitioner, considering mitigating circumstances and also the family condition of the petitioner, while upholding the order on conviction, modified the order on sentence and sentenced the petitioner to pay a fine of Rs 1000/- for the offence under Section 279 IPC and in default of payment of fine to undergo simple imprisonment for a period of 8 days and sentenced the petitioner to undergo rigorous imprisonment for a period of 12 months for the offence under Section 304A IPC, instead of 18 months.”
In addition, it is then also pointed out in para 4 that, “The Appellate Court additionally directed that the driving licence of the petitioner shall stand cancelled and debarred him from obtaining any driving licence throughout his life and directed that no fresh driving licence shall be issued to him.”
By all accounts, the punishment that was imposed by the Appellate Court as narrated in para 4 is far too excessive. This has been acknowledged and appreciated even by the Delhi High Court itself in this landmark judgment even though it admitted that the Appellate Court is empowered to debar a person from holding a licence for as long a period as it deems fit. So no wonder that it had to be set aside!
Be it noted, para 29 very rightly states that, “The petitioner is a driver by profession and cancellation of the driving license of the petitioner permanently and debarring him from obtaining a driving licence for life amounts to a punishment that he cannot carry out the vocation of driving throughout his life.”
Most significantly, it is then very rightly conceded in para 30 that, “The punishment of cancellation of the driving license permanently and debarring him from obtaining any driving license throughout his life literally amounts to his civil death because he would not be in a position to carry out his profession for life.” Who can deny or dispute this? Certainly no one!
Needless to say, it is quite remarkable that Delhi High Court has been gracious enough to concede that the consequences of cancellation of his driving license for life and debarring him from obtaining any driving license throughout his life literally amounts to his civil death as he would be decapitated from carrying out his profession throughout his remaining life which certainly under no circumstances can be justified as two wrongs cannot make a right! The Appellate Court certainly did not deliberate much on this! This alone explains why it failed to appreciate what the Delhi High Court has done now so rightly!
To put it succinctly, the Delhi High Court then rightly held in para 32 that, “In the present case, as noticed above, the concurrent finding of both the courts below is that petitioner caused the death by driving the offending vehicle i.e. truck trailer, in a rash and negligent manner and hit against the deceased from the back, in such a manner that it caused the death of the deceased on the spot. Clearly, it cannot be said that the action of the Appellate Court in directing cancellation of the license driving license is unwarranted. However, in the facts of the case and particularly keeping in view the provisions of section 22 of the Act, I am of the opinion that cancellation of the license driving license of the petitioner for all classes or description of vehicles is excessive.”
Finally and no less significantly, it is then held in para 33 that, “Keeping in view the facts and circumstances of the case, interest of justice would be served, in case, the sentence awarded by the Appellate Court of cancellation of the driving license of the petitioner and debarring him from obtaining any driving license throughout his life, is modified to the extent that the driving license of the petitioner is cancelled for the class and description of medium and heavy goods and medium and heavy passenger vehicle and he is debarred from obtaining a driving licence for medium and heavy goods and medium and heavy passenger vehicle. For obtaining a driving licence of other description of vehicles he shall have to undergo a fresh test of competence to drive.”
In conclusion, it may well be said that it is a fairly balanced and well concluded judgment. Justice Sanjeev Sachdeva of Delhi High Court very rightly acknowledges the power of the Appellate Court to deprive the petitioner of his driving license for life but in the same vein also concedes that it is excessive! This alone explains that why the judgment of the Appellate Court was overturned and the petitioner was granted relief by the Delhi High Court! All the courts must follow the Delhi High Court in similar such cases and take a compassionate view as we see here in this notable judgment!
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